Can't Prevent Bidder From Participating In Tender Process On Ground Of Pendency Of Proposal For Blacklisting: Bombay High Court

A division bench of Justice A. S. Chandurkar and Justice Vrushali V. Joshi held:

“While there can be no quarrel with the proposition that in an appropriate case the action of blacklisting may be justified, it is to be kept in mind unless there is an order of blacklisting, a bidder is entitled to participate in the tender process unhindered...Even according to the Zilla Parishad the proposal for blacklisting the petitioner is pending with the State Government. Thus in absence of any order of blacklisting being suffered by the petitioner it cannot be prevented from participating in the tender process on that ground.”

The Zilla Parishad in 2022 had issued a tender notice inviting bids for about 10 works. The Water Supply and Sanitation Department issued a communication dated January 30, 2023 informing the Zilla Parishad that proposal to blacklist the petitioner is under consideration. Hence, the petitioner was not being permitted to participate in the tender process on the ground that the state government’s instructions are awaited.

As per the tender document, a contractor is liable to be disqualified if it has been blacklisted from participating in a tender.

Advocate Abhay Sambre for the petitioner submitted that since no order of blacklisting is in existence as of now, the petitioner cannot be prevented from participating merely because it is proposed that it be blacklisted.

Advocate P.K. Sathianathan for the Zilla Parishad submitted that a communication was received by the Zilla Parishad that the process of blacklisting the petitioner was underway. Further, there are three crimes registered against the petitioner and hence the Zilla Parishad was justified in debarring the petitioner, he said.

The court noted that the order of blacklisting is not in existence and even according to the Zilla Parishad the proposal of blacklisting the petitioner is pending with the state government. In absence of any order of blacklisting petitioner cannot be prevented from participating in the tender process, the court held.

The Zilla Parishad was not justified and restraining the petitioner from participating in the tender process because of that, the court held. The court directed the Zilla Parishad to consider the petitioner’s bids according to the tender notice. The bids shall not be rejected only because of the communication dated December 30, 2022, the court said. If the petitioner is blacklisted, Zilla Parishad is free to consider that aspect in accordance with the law, it added.

Case no. – Writ Petition No. 16/2023

Case Title – M/s. Nanak Construction v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 69